Take Your Best Shot – Pictures As Evidence

Written by on August 11, 2017. Posted in Environmental laws

You have a problem and you’ve talked to your legal representative. You promised to send them some pictures… Here are 3 things you should know.

1. Who took the picture? To make the best use of your pictures, make sure you know who took the pictures, and that they know where and when the pictures were taken.

Some pictures will only ever be used to help your legal team understand what you are talking about. But if you need to present your side of the story to anyone else, for example, an inspector, a ministry investigator, a director, a tribunal adjudicator, a justice of the peace, or a judge (‘decision maker’), then your pictures need to be “proved” or verified by the person who took them.  Often that person is you, but if it’s not, then the person who took the pictures could be asked to make a sworn statement regarding the pictures, generally covering who, what, where, when, and possibly, why and how.

Environmental issues often involve visible site conditions and ‘before, during and after’ pictures may play a significant role in understanding what went on. Whoever took those pictures may be very important to your case when you are trying to find a resolution to your legal problem.

Takeaway: Pictures need to be ‘proved’ by the person who took them.

2. Do not alter your original pictures. Keep the originals safe for future reference and legal use. The person who took the pictures will be need to state that the pictures are unaltered. In other words, they are a true representation of what was photographed.

In addition to the originals, however, you may be allowed by the decision maker to present an altered version of the same pictures, for example, one that lightens the exposure and improves the visibility of what is shown in the pictures. But you will always have to provide the originals.  This allows the decision maker to compare the original with the altered version and satisfy themselves that the alteration improves clarity and, in so doing, assists the decision maker in understanding the evidence and the facts of the case.

With technology at our fingertips it’s very tempting to ‘fix’ our pictures. You may want to lighten the exposure, sharpen the image, or decrease the size and format of the electronic file.  This is fine, except if your pictures could be used in any way in a legal process e.g., to support your due diligence when setting up to spread manure on a field, or when implementing a new technology to handle waste water at your plant, then make sure you keep a file marked ‘originals’.

Takeaway: Keep original pictures safe and unaltered.

Make notes about the content of each picture. Do this as soon as possible after each picture is taken, preferably when the picture is taken and before you leave the site – be sure to sign and date your notes.

Proving pictures i.e., answering questions about the details of each picture, can get confusing if there are a lot of them and you’re asked about them months or years later.

Notes matter because if you took the pictures, and the notes were made by you at virtually the same time the pictures were taken (called contemporaneous notes), then you should be allowed to refer to them when you’re answering questions. Providing confident, accurate answers improves the credibility of your evidence related to the pictures. The point is to help the decision maker understand your evidence and the facts of the case so they can make the best decision possible.

When environmental issues arise there is often a time lag between occurrence and review of what happened and the related impacts. Pictures and contemporaneous notes can go a long way to recreating and understanding events.

Takeaway: Immediately make notes about each picture.  Sign and date your notes.